Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-006
Last-Modified: 1999/05/27
30. We have discussed at length the international character
of the crimes in question because this offers the broadest
possible, though not the only, basis for Israel's
jurisdiction according to the law of nations. No less
important from the point of view of international law is the
special connection the State of Israel has with such crimes,
seeing that the People of Israel (Am Yisrael) - the Jewish
People (Ha'am Ha'Yehudi - to use the term in the Israel
legislation) constituted the target and the victim of most
of the crimes in question. The State of Israel's "right to
punish" the Accused derives, in our view, from two
cumulative sources: a universal source (pertaining to the
whole of mankind) which vests the right to prosecute and
punish crimes of this order in every state within the family
of nations; and a specific or national source which gives
the victim nation the right to try any who assault its
existence.
This second foundation of penal jurisdiction conforms,
according to the acknowledged terminology, to the protective
principle (the competence reelle). In England, which until
a short time ago was considered a country that does not rely
on such jurisdiction (see still in "Harvard Research in
International Law, Jurisdiction with Respect to Crime,"
1935, AJIL, Vol. 35 (Suppl.) 544) where it was stated in
Joyce v. D.P.P. (1946) A.C. 347 (p. 372):
"The second point of appeal...was that in any case no
English court has jurisdiction to try an alien for a
crime committed abroad... There is, I think, a short
answer to this point. The statute in question deals
with the crime of treason committed within or...without
the realm... No principle of comity demands that a
state should ignore the crime of treason committed
against it outside its territory. On the contrary, a
proper regard for its own security requires that all
those who commit that crime, whether they commit it
within or without the realm, should be amenable to its
laws."
Oppenheim-Lauterpacht I para. 147, p. 333, says that the
penal jurisdiction of the state includes
"crimes injuring its subjects or serious crimes against its
own safety."
Most European countries go much farther than this (See
"Harvard Research," ibid., p. 546 et seq.).
31. Dahm says in his Zur Problematik des Voelkerstrafrechts,
1956, p. 28, that the protective principle is not confined
to foreign offences that threaten the "vital interests" of
the state, and goes on to explain (pp. 38-39) in his
reference to "immanent limitations" of the jurisdiction of
the state that a departure therefrom would constitute an
"abuse" of its sovereignty. He says:
"Penal jurisdiction is not a matter for everyone to
exercise. There must be a "linking point," a legal
connection that links the punisher with the punished.
The State may, insofar as international law does not
contain rules contradicting this, punish only persons
and acts which concern it more than they concern other
States" (author's italics).
Learned Counsel summed up his pleadings against the
jurisdiction of the Israel legislator by stressing (Session
5, Vol. 1, pp.56-59) that under international law there must
be a connection between the state and the person who
committed the crime, and that, in the absence of an
"acknowledged linking point," it was ultra vires for the
state to inflict punishment for foreign offences.
The doctrine of the "linking point" is not new. Dahm
(ibid.) bases himself on Mendelssohn-Bartholdy,
Vergleichende Darstellung des deutschen und auslaendischen
Strafrechts, Allg. Teil VI (1908) 111 ff. And Mendelssohn-
Bartholdy himself (ibid.) quotes Rolin-Jaquemins as having
said in 1874:
"Tout le monde est d'accord sur ce point qu'il faut un
lien de droit entre celui qui punit et celui qui subit
le chatiment."
32. We have already stated above the view of Grotius on "the
right to punish," a view which is also based on a "linking
point" between the criminal and his victim: Grotius holds
that the very commission of the crime creates a legal
connection between the offender and the victim which vests
in the victim the right to punish the offender or demand his
punishment. According to natural justice, the victim may
himself punish the offender, but the organization of society
has delegated that natural right to the sovereign state.
One of the main objects of the punishment is - continues the
author of The Law of Peace and War (Book 2, chapter 20) - to
ensure that
"the victim shall not in future suffer a similar infliction
at the hands of the same person or at the hands of others"
(ne post hac tale quid patiatur aut ab eodem aut ab aliis).
Grotius also quotes an ancient authority who said that the
punishment is necessary to
"defend the honour or the authority of him who was hurt by
the offence, so that the failure to punish may not cause his
degradation" (dignitas auctoritasve ejus in quem est
peccatum tuenda est, ne praetermissa animadversio contemtum
ejus pariat et honorem levet),
and he adds that all that has been said of the jurisdiction
applies to the infringement of all his rights. And again:
"Ne ab aliis laedatur qui laesus est punitione non
quavis, sed aperta atque conspicua quae ad exemplum
pertinet obtinetur" (In order that the victim may not
be hurt by others, there must be no mere punishment but
a public and striking punishment that will serve as an
example.)
Not all jurists use the term "linking point" in an equal
connotation. Thus, Mendelssohn-Bartholdy holds the opinion
that the sovereignty of a country in determining its penal
jurisdiction is unlimited, and he resorts to the "linking
point" doctrine solely as a scientific device for the
classification of the offences specified in positive law:
"The number of linking points is as large as the number of
offences" (ibid., p. 112). On the other hand, Hyde (ibid.,
p. 804) demands, as already mentioned
"a close and definite connection between that act and
the prosecutor, and one which is commonly acknowledged
to excuse the exercise of jurisdiction. There are few
situations where the requisite connection is deemed to
exist... The connection...is... apparent when the act
complained of is to be fairly regarded as directed
against the safety of the prosecuting State."
Between these two extreme views is the view of Dahm (ibid.).
Notwithstanding the difference of opinion as to the
closeness of the requisite link, the very term "connection"
or "linking point" is useful for the elucidation of the
problem before us. The question is: What is the special
connection between the State of Israel and the offences
attributed to the Accused, and whether this connection is
sufficiently close to form a foundation for Israel's right
of punishment against the Accused. This is no merely
technical question but a wide and universal one; for the
principles of international law are wide and universal
principles and not articles in an express code.
33. When the question is presented in its wider form, as
stated above, it seems to us that there can be no doubt what
the answer will be. The "linking point" between Israel and
the Accused (and for that matter between Israel and any
person accused of a crime against the Jewish People under
this law) is striking in the "crime against the Jewish
People," a crime that postulates an intention to exterminate
the Jewish People in whole or in part. Indeed, even without
such specific definition - and it must be noted that the
draft law only defined "crimes against humanity" and "war
crimes" (Bills of the Year 5710 No. 36, p. 119) - there was
a subsisting "linking point," since most of the Nazi crimes
of this kind were perpetrated against the Jewish People; but
viewed in the light of the definition of "crime against the
Jewish People," as defined in the Law, constitutes in effect
an attempt to exterminate the Jewish People, or a partial
extermination of the Jewish People. If there is an
effective link (and not necessarily identity) between the
State of Israel and the Jewish People, then a crime intended
to exterminate the Jewish People has an obvious connection
with the State of Israel.
34. The connection between the State of Israel and the
Jewish People needs no explanation. The State of Israel was
established and recognized as the State of the Jews. The
proclamation of 5 Iyar 5708 (14 May 1948) (Official Gazette
No. 1) opens with the words: "It was in the Land of Israel
that the Jewish People was born," dwells on the history of
the Jewish People from ancient times until the Second World
War, refers to the Resolution of the United Nations Assembly
of 29 November 1947 which calls for the establishment of a
Jewish State in the Land of Israel, determines the "natural
right of the Jewish People to be, like every other people,
self-governing, in its sovereign state." It would appear
that there is no need for any further proof of the obvious
connection between the Jewish People and the State of
Israel: This is the sovereign state of the Jewish People.
Moreover, the Declaration of the Establishment of the State
of Israel makes mention of the specific tragic link between
the Nazi crimes which form the subject of the Law in
question, and the establishment of the state:
"The catastrophe which recently befell the Jewish
People - the massacre of millions of Jews in Europe -
was another clear demonstration of the urgency of
solving the problem of its homelessmess by re-
establishing in the Land of Israel the Jewish State,
which would open the gates of the homeland wide to
every Jew, and confer upon the Jewish People the status
of a fully privileged member of the comity of nations.
"Survivors of the Nazi Holocaust in Europe, as well as
Jews from other parts of the world, continued to
migrate to the Land of Israel, undaunted by
difficulties, restrictions and dangers, and never
ceased to claim their right to a life of dignity,
freedom and honest toil in their national homeland.
"In the Second World War, the Jewish community of this
country contributed its full share to the struggle of
the freedom- and peace-loving nations against the
forces of Nazi wickedness and, by the blood of its
soldiers and its war effort, gained the right to be
reckoned among the peoples who founded the United
Nations."
These words are no mere rhetoric, but historical facts which
international law does not ignore.
In the light of the recognition by the United Nations of the
right of the Jewish People to establish their State, and in
the light of the recognition of the established Jewish State
by the family of nations, the connection between the Jewish
People and the State of Israel constitutes an integral part
of the law of nations.
The massacre of millions of Jews by the Nazi criminals that
very nearly led to the extinction of the Jewish People in
Europe, was one of the tremendous causes for the
establishment of the State of the survivors. The State
cannot be cut off from its roots which also lie deep within
the Holocaust of European Jewry.
Half of the citizens of the State have immigrated from
Europe in recent years, some before and some after the Nazi
massacre. There is hardly one of them who has not lost
parents, brothers and sisters, and many lost their spouses
and their offspring in the Nazi hell.
Under these circumstances, which are without precedent in
the annals of any other nation, can there be any one who
would contend that there is no sufficient "linking point"
between the crime of the extermination of the Jews of Europe
and the State of Israel?
35. Learned Counsel contends that in the absence of a
"recognized linking point" only the principle of
territoriality is valid with respect to the crimes
attributed to the Accused. On this principle, at least
eighteen countries may try the Accused for the offences
specified in the indictment, and had one or several of such
countries prosecuted the Accused for the extermination of
the Jews who resided there, the Accused would not have had
any argument against the jurisdiction of the Court. In
other words, eighteen nations do have the right to punish
the Accused for the murder of Jews who resided in their
territories, but the nation of those who were murdered has
no right to inflict such punishment because those persons
were not exterminated on its territory.
But the people is one and the crime is one: The crime
attributed to the Accused is "the killing of millions of
Jews with intent to exterminate the Jewish People." The
Jewish population now residing in the State of Israel, or
the Jewish "Yishuv" which lived in Palestine before the
establishment of the State, too, is part of the Jewish
People whom the Accused sought, according to the indictment,
to exterminate. Although that part of the people was
rescued, it was in danger of extermination, as the history
of the World War shows. At all events, the extermination of
European Jewry which was carried out with intent to
annihilate the Jewish People, was directed not only against
those Jews who were exterminated, but against the entire
Jewish People, including the Jewish "Yishuv" in Palestine.
To argue that there is no connection, is like cutting away
the roots and branches of a tree and saying to its trunk: I
have not hurt you.
Indeed, this crime very deeply concerns the vital interests
of the State of Israel, and pursuant to the "protective
principle," this State has the right to punish the
criminals. In terms of Dahm's thesis, the acts in question
referred to in this Law of the State of Israel "concern
Israel more than they concern other states," and therefore,
according to this author's thesis, too, there exists a
"linking point." The punishment of Nazi criminals does not
derive from the arbitrariness of a country "abusing" its
sovereignty, but is a legitimate and reasonable exercise of
a right in penal jurisdiction.
The very existence of a people who can be murdered with
impunity is in danger, to say nothing of the danger to its
"honour and authority" (Grotius). This has been the curse
of the diaspora and the want of sovereignty of the Jewish
People, upon whom any criminal could commit his outrages
without fear of being punished by the people outraged.
Hitler and his associates exploited the defenceless position
of the Jewish People in its dispersion, in order to
perpetrate the total murder of that People in cold blood.
It was also in order to provide some measure of redress for
the terrible injustice of the Holocaust that the sovereign
state of the Jews, which enables the survivors of the
Holocaust to defend its existence by the means at the
disposal of a state, was established on the recommendation
of the United Nations. One of the means therefor is the
punishment of the murderers who did Hitler's contemptible
work. It is for this reason that the Law in question has
been enacted.
36. Counsel contended that the protective principle cannot
apply to this case because that principle is designed to
protect only an existing state, its security and its
interests, while the State of Israel had not existed at the
time of the commission of the crime. He further submitted
that the same contention applies to the principle of
"passive personality" which stemmed from the protective
principle, and of which some states have made use for the
protection of their citizens abroad through their penal
legislation. Counsel pointed out that, in view of the
absence of a sovereign Jewish State at the time of the
Holocaust, the victims of the Nazis were not, at the time
they were murdered, citizens of the State of Israel.
In our view, learned Counsel errs when he examines the
protective principle in this retroactive Law according to
the time of the commission of the crimes, as is the case in
an ordinary law. This Law was enacted in 1950 with a view
to its application to a specified period which had
terminated five years before its enactment. The protected
interest of the State recognized by the protective principle
is, in this case, the interest existing at the time of the
enactment of the Law, and we have already dwelt on the
importance of the moral and protective task which this Law
is designed to achieve in the State of Israel.
37. The retroactive application of the Law to a period
precedent to the establishment of the State of Israel is
not, in respect to the Accused (and, for that matter, to any
accused under this Law), a problem different from that of
the usual retrospectivity on which we have already dwelt
above. Goodhart states in his "The Legality of the
Nuremberg Trial," Juridical Review, April 1946, (p. 8),
inter alia:
"Many of the national courts now functioning in the
liberated countries have been established recently, but
no one has argued that they are not competent to try
the cases that arose before their establishment... No
defendant can complain that he is being tried by a
court which did not exist when he committed the act."
What is said here of a court which did not exist at the time
of the commission of the crime, is also valid with respect
to a state which was not sovereign at the time of the
commission of the crime. The whole political landscape of
the continent of occupied Europe has changed after the War;
boundaries have changed, as has also changed the very
identity of states that had existed before. But all this
does not concern the Accused.
38. All this is said in relation to the Accused; but may a
new state try crimes at all that were committed before it
was established? The reply to this question was given in
Katz-Cohen v. Attorney General, C.A. 3/48 (Pesakim II, p.
225) where it was decided that the Israeli courts have full
jurisdiction to try offences committed before the
establishment of the State, and that "in spite of the
changes in sovereignty, there subsisted a continuity of
law." "I cannot see," said President Smoira, "why that
community in the country against whom the crime was
committed should not demand the punishment of the offender
solely because that community is now governed by the
Government of Israel, instead of by the Mandatory Power."
This was said with respect to a crime committed in the
country, but there is no reason to assume that the law would
be different with respect to foreign offences. Had the
Mandatory legislator enacted at the time an extraterritorial
law for the punishment of war criminals (as, to give one
example, the Australian legislator did in the War Criminals
Act, 1945, see Section 12), it is clear that the Israeli
court would have been competent to try under such law
offences which were committed abroad prior to the
establishment of the State. The principle of continuity
also applies to the power to legislate: The Israeli
legislator is empowered to amend or supplement the Mandatory
legislation retroactively by enacting laws applicable to
criminal acts which were committed prior to the
establishment of the State.
Indeed, this retroactive law is designed to supplement a gap
in the laws of Mandatory Palestine, and the interests
protected by this law existed also during the period of the
Jewish National Home. The Balfour Declaration and the
Palestine Mandate given by the League of Nations to Great
Britain constituted an international recognition of the
Jewish People (see N. Feinberg, "The Recognition of the
Jewish People in International Law," Jewish Yearbook of
International Law 1948, p. 15, and authorities there cited),
the historical link of the Jewish People with the Land of
Israel and their right to reestablish their National Home in
that country. The Jewish People actually made use of that
right, and the National Home has grown and developed until
it reached a sovereign status. During the period preceding
the establishment of the sovereign State, the Jewish
National Home may be seen as reflecting the rule nasciturus
pro jam nato habetur (see Feinberg, ibid.). The Jewish
"Yishuv" in Palestine constituted during that period a
"state-on-the-way," which in due time reached a sovereign
status. The lack of sovereignty made it impossible for the
Jewish "Yishuv" in the country to enact a criminal law
against the Nazi crimes at the time of their commission, but
these crimes were also directed against that "Yishuv" which
constituted an integral part of the Jewish People, and the
enactment with retroactive application of the Law in
question by the State of Israel answered the need which had
already existed previously.
The historical facts explain the background of the
legislation in question; but it seems to us that, from a
legal point of view, the power of the new State to enact
retroactive legislation does not depend on that background
alone, and is not conditioned by the continuity of law
between Palestine and the State of Israel. Let us take an
extreme example and assume that the Gypsy survivors - an
ethnic group or a nation who were also, like the Jewish
People, victims of the "crime of genocide" - would have
gathered after the War and established a sovereign state in
any part of the world. It seems to us that no principle of
international law could have denied the new state the
natural power to put on trial all those killers of their
people who fell into their hands. The right of the injured
group to punish offenders derives directly, as Grotius
explained (see supra) from the crime committed against them
by the offender, and it was only want of sovereignty that
denied them the power to try and punish the offender. If
the injured group or people thereafter reaches political
sovereignty in any territory, it may make use of such
sovereignty for the enforcement of its natural right to
punish the offender who injured it.
All this holds good in respect to the crime of genocide
(including the crime against the Jewish People) which, it is
true, is committed by the killing of the individuals, but is
intended to exterminate the nation as a group. According to
Hitler's murderous racialism, the Nazis singled out Jews
from all other citizens in all the countries of their
domination, and carried the Jews to their death solely
because of their racial affiliation. Even as the Jewish
People constituted the object against which the crime was
directed, so it is now the competent subject to place on
trial those who assailed its existence. The fact that this
People changed after the Holocaust from object to subject,
and from the victim of a racial crime to the wielder of
authority to punish the criminals, is a great historic right
that cannot be dismissed. The State of Israel, the
sovereign State of the Jewish People, performs through its
legislation the task of carrying into effect the right of
the Jewish People to punish the criminals who killed its
sons with intent to put an end to the survival of this
people. We are convinced that this power conforms to
existing principles of the law of nations.
For all these reasons we have dismissed the first submission
of Counsel against the jurisdiction of this Court.

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